1, lawyer's risk in criminal responsibility. In the process of participating in criminal proceedings, lawyers violate Article 306 of the Criminal Law, which constitutes the crime of defenders and agents ad litem destroying evidence, forging evidence and obstructing testimony; Violation of Article 3 10 of the Criminal Law constitutes the crime of harboring; Violation of Article 398 of the Criminal Law constitutes the crime of revealing state secrets. Every year, hundreds of lawyers in China are restricted by the relevant authorities for various reasons. According to statistics, since 1996, more than 300 lawyers have been "brought to justice" by judicial organs for various reasons. For example, Sun, director of Harbin Taiping Law Firm, who has no national staff status at all, was sentenced to 1 1 year for corruption; Lawyers are obviously not the main body of the crime of dereliction of duty, but Peng Jie, a lawyer of Nanfang Law Firm in Hengyang City, Hunan Province, succeeded in the defendant's premeditated escape. The court sentenced Peng to three years in prison for "dereliction of duty"; Zhang Jianzhong, the director of Beijing Law Firm, who had acted as a defender for Chen Xitong and Li Jizhou, was sentenced to two years' imprisonment at first instance for helping to forge evidence. Li Kuisheng, the author of "The Wonder in the Altar" and "The First Lawyer in the Central Plains" and the director of Henan Qingtian Law Firm, was sentenced to fixed-term imprisonment of 12 years and fined 654.38+00000 yuan. On July 10, 2006, two lawyers, Kong Weidong and Zhan Jun, in the "700 million series case of Beijing real estate loan fraud", were prosecuted by the procuratorate for the crime of issuing documents with great inaccuracy. There are countless such cases. At present, the national criminal defense rate is gradually declining, and more than 70% of criminal cases concluded by national courts have no defenders.
2. Lawyer risk in civil compensation. Article 49 of the Lawyers Law stipulates that if a lawyer practices illegally or causes losses to his client due to his fault, his law firm shall be liable for compensation. After making compensation, a law firm may claim compensation from a lawyer who has committed intentional or gross negligence. Lawyers and law firms shall not be exempted or restricted from civil liability for losses caused to the parties due to illegal practice or fault; Articles 66 and 67 of the General Principles of the Civil Law stipulate that if an agent violates the law or exceeds the authority of the agent and damages the interests of the principal, he shall be jointly and severally liable. In the process of litigation and non-litigation business, due to the lawyer's own fault behavior or the complexity of the case itself, the lawyer's interests are damaged or his demands are not satisfied, mainly as follows: (1) compensation for losses caused by dereliction of duty. (2) Misunderstanding of legal issues leads to mistakes. (3) Low degree of specialization leads to risks. Such as revealing business secrets, losing important evidence, improper litigation request, wrong proof, ultra vires agency, delaying the litigation period, deviating from the judgment of the nature (cause of action) of the case, improper or wrong legal advice provided to the enterprise, etc. The parties can completely ask the lawyer to refund the agency fee and compensate for the losses on this ground. For example, a lawyer in Shenzhen wrote "Shenzhen Industrial Company" as "Shenzhen Industrial Company" because the defendant "Shenzhen Branch" did not repay the project payment, which led to the statute of limitations expired and the debt of 6.5438+million yuan could not be recovered, and the court ordered him to compensate for the loss of 6.5438+million yuan and refund the lawyer's fee. It can be said that the compensation risk of lawyers in civil cases is the most complicated and difficult to predict.
3. Risks of lawyers in industry management. Article 49 of the Lawyers Law stipulates that if a lawyer is investigated for criminal responsibility for intentional crime, his lawyer's practice certificate shall be revoked and cannot be restored for life; If a lawyer falls under the circumstances stipulated in Articles 47 to 49 of the Lawyers Law, the judicial administrative department of the people's government of a province, autonomous region, municipality directly under the Central Government or a city divided into districts shall give him a warning, and if the circumstances are serious, he shall be punished for stopping practicing for more than three months and less than one year; If there are illegal gains, the illegal gains shall be confiscated.
4. Personal safety risks of lawyers. Lawyers may have physical conflicts with clients or opponents with poor quality. Ma, director of Linfen Law Firm, agent ad litem in divorce cases. The other party actually dug the horse's eyes with their hands, and the horse's eyes immediately gushed out blood, and the right eye popped out. When Jize County Law Firm of Hebei Province acted as a lawyer to handle an economic dispute case in Hunan, it was kidnapped and taken hostage by the director of Lian Meng Village Fireworks Factory in Wangfang Township, Liling City, Hunan Province, and was subjected to inhuman torture. It took 120 days to be rescued. Before Saddam was hanged, lawyers reimbursed three of them.
Three, the lawyer's practice risk prevention
(1) Avoidance of lawyers' personal risks in criminal cases.
1. Defenders and agents ad litem can temporarily avoid the risks brought by the crimes of destroying evidence, forging evidence and obstructing testimony as stipulated in Article 306 of the Criminal Law. (1) did not obtain evidence. The so-called failure to obtain evidence here does not mean a serious and irresponsible failure to obtain evidence in violation of lawyers' professional ethics and practice discipline, but refers to the behavior that practicing lawyers use other means and methods stipulated by law to obtain evidence in the process of handling criminal cases without directly investigating and obtaining evidence. Lawyers can provide evidence clues to the investigation organs in the form of Supplementary Investigation Suggestions, or apply to the people's court for evidence and witnesses to appear in court. (2) notarization and evidence collection. That is, when obtaining evidence, a notary will be present to supervise and certify the authenticity and legality of the evidence collection. Although this is time-consuming and laborious, it not only enhances the effectiveness of evidence, but also avoids the risk of practice, which is a desirable method at this stage. (3) Don't give irrelevant evidence. The evidence submitted by lawyers should first be beneficial to criminal suspects and defendants; Secondly, we must also ensure that the evidence submitted has an impact on the conviction and sentencing of criminal suspects and defendants. Therefore, there is no need to present evidence such as the testimony of the interested party and the confession of the defendant in court. (4) Avoid direct contact with witnesses. Article 306 of China's Criminal Law and Article 38 of China's Criminal Procedure Law stipulate: "A lawyer shall not induce a witness to change his testimony or commit perjury against the facts." However, in judicial practice, there is no clear standard to measure what is "temptation", so it is often enlarged by judicial organs, which brings great risks to lawyers' practice. In non-trial situations, lawyers should try to avoid direct contact with witnesses.
2. The crime of sheltering as stipulated in Article 3 10 of the Criminal Law can be solved in the following ways: (1) Inform criminal suspects and defendants that they can only make statements and excuses about the allegations made by public security organs, people's procuratorates and people's courts, and may not state other facts unrelated to the alleged crime. Fundamentally cut off the possibility of lawyers knowing other crimes of criminal suspects and defendants, and avoid the risk of practice. (2) Tell him that there are other crimes that the judicial organs have not mastered, and you can surrender to the judicial organs, and tell him the legal consequences of surrender. (3) For some special cases, such as criminal suspects and defendants who may continue to commit crimes, once lawyers know it, they should try their best to handle it through the lawyers' association and other relevant departments under the premise of not violating lawyers' professional ethics.
3. The crime of revealing state secrets stipulated in Article 398 of the Criminal Law is also a crime that cannot be ignored. 200 1, Yu Ping, a lawyer of Jiaozuo Law Firm, Henan Province, arranged for Lu Mou, an assistant lawyer, to hand over the photocopied case file to the relatives of the defendant, which led to the witness Zhang and others involved in the case issuing false certificates, and was prosecuted by the People's Procuratorate of Qinyang City, Henan Province for deliberately leaking state secrets, becoming the first lawyer in China to be investigated for criminal responsibility for leaking state secrets. Because the current laws and administrative regulations do not clearly stipulate the confidentiality level of lawyers' files, the Intermediate People's Court of Jiaozuo City, Henan Province found that the defendant did not constitute the crime of revealing state secrets in the judgment of second instance. However, we have to note that some materials in some files are indeed confidential. If the lawyers handling these cases disclose this part of the materials, it will inevitably constitute the crime of revealing state secrets as stipulated in Article 398 of the Criminal Law. Therefore, in the process of handling criminal business, lawyers should refuse their requests according to Article 25 of the Code of Professional Ethics and Practice Discipline of Lawyers, and fully inform them of the nature and legal consequences of the act.
(B) lawyers in the civil and commercial business risk aversion.
1, case review. Lawyers and law firms should evaluate and judge the possibility, possible risks and basic risk avoidance measures of the business to be accepted after acceptance before accepting the business, and exclude those cases that are prone to risks and the risk avoidance measures are difficult to implement. When filing a case, it is necessary to examine whether the client's identity is true, whether his name and title are accurate, whether the cause of action (legal relationship) is standardized, whether the client's signature in the entrustment contract is written in black gel pen or black ink, whether there is any conflict of professional interests, whether a lawyer is appointed, and the cause of action. The parties and entrustment authority filled in the agency contract are consistent with the power of attorney and official letter. It is absolutely forbidden to hand over the sealed blank agency contract, entrustment agreement and consulting contract to the client or other personnel.
2. Fully inform the risks. In judicial practice, many disputes between lawyers and clients are due to the failure to fully and timely inform the clients of the nature and legal consequences of the business entrusted by them in the process of accepting cases and handling business, or to inform the clients without relevant evidence. In view of this situation, lawyers must fully, promptly and in writing inform clients of the nature and legal consequences of related matters in the process of handling business, so that clients can sign the risk notice and collect fees.
3. avoid recording. Avoid inappropriate words being recorded.
4. Litigation documents review whether the identity of the parties listed in the litigation documents is true, whether the names and titles are accurate, whether there are any missing parties, whether the cause of action (legal relationship) is accurate, whether the litigation request is comprehensive and correct, whether the legal provisions involved are accurate, whether they are current effective terms, whether the litigation documents are signed by the parties, and whether they are written in black gel pen or black ink.
5. Try not to accept the customer's evidence or the original legal documents. The loss of client's evidence or legal documents by lawyers in the process of handling civil and commercial business not only seriously violates lawyers' professional ethics and practice discipline, but also is the main inducement for clients to suffer heavy economic losses and one of the main reasons for lawyers' practice risks. As long as lawyers adhere to the principle that all the originals of evidence and legal documents are kept by customers when handling business, they can completely avoid the practice risks caused by the loss of evidence or legal documents.
6. Collective analysis and discussion. Lawyers should make use of collective wisdom, brainstorm, analyze and discuss problems that are difficult to grasp or deal with, and propose solutions to possible risks. Such an operation can not only avoid the compensation risk caused by the limitation of lawyers' professional level to a great extent, but also provide ideas and measures for the law firm to calmly face disputes in the future.
7. When disposing of the principal's substantive or important procedural rights, even with the special authorization of the parties, it should be implemented by the principal himself as far as possible, such as adding, changing, bringing a lawsuit, signing a mediation and settlement agreement, withdrawing the lawsuit, etc.
8. Try not to collect legal documents. Try not to sign and receive legal documents such as complaints, judgments and mediation books on behalf of the parties. If it is necessary to sign and receive legal documents on behalf of the parties, it shall be signed and filed by the parties.
9. Strictly review the lawyer's testimony and conclusive legal opinions. Article 189 of the Securities Law stipulates that "the documents issued by social intermediary institutions are false, misleading and have major omissions", and they shall bear the responsibility. Therefore, it is an important means to avoid risks by holding such a conclusive legal opinion and auditing it within the law firm. The advantage of this is that it not only effectively controls risks in the bud, but also reflects the firm's absolute responsibility to customers.
10, strengthen file management. The most important basis for determining whether a lawyer meets the requirements of diligence is to handle business files. The risk of lawyer's practice mostly occurs after the case is closed. How to judge whether there is fault in lawyer's work and how much fault responsibility should be borne is the most important basis. Therefore, in order to avoid risks, we must strengthen the management and production level of lawyers' business files and preserve them for a long time.
(C) lawyers' risk avoidance in industry management and industry self-discipline. Visit regularly, strengthen internal handling and reduce complaints. It is necessary to establish a system of regular customer return visits, contact customers in time, understand their opinions, and actively coordinate the contradiction between customers and handling lawyers. Once the client raises an objection, the responsible lawyer will put out the fire first, and if necessary, he can bear certain no-fault liability. If lawyers really can't handle it, they should report it in time, and the law firm should handle it effectively first, so as to minimize the possibility of complaints.
(d) Avoid personal safety risks of lawyers.
1. If you are not a specialized criminal defense lawyer or know little about criminal defense, you can try to organize criminal cases with experienced lawyers. 2. When a male lawyer divorces the man on behalf of the woman, he should try to keep a distance from the female client and pay attention to the wording in court. In court, lawyers should not make a fuss about the mistakes of prosecutors and judges if their mistakes do not affect the outcome of the case. The lawyer must leave the public security organ before 11: 00 a.m. to 5: 00 p.m. unless it is because of the court session or important business, otherwise you will be disappointed when others are waiting for dinner. Don't choose your own guests for dinner, just call the person you want to invite, otherwise putting a group of people on the same table will lead to infighting and hurt the fish in the pool. 6. The lower the position, the more respect you should have when dealing with people in public security organs. The king of hell is easy to deal with, but the kid is difficult to deal with. 7. It is best to have two colleagues together when traveling far away, so that they can take care of each other and try to stay away from illegal activities. 8. Be careful when dealing with Jianghu people and try to keep your distance.